It is common cause that the applicant allegedly committed these offences whilst on bail pending appeal in respect of two convictions of armed robbery.

Bail pending appeal is granted after the court seized with the matter is satisfied that the applicant has prospects of success in the pending appeal, and the risk of abscondment is highly unlikely given the circumstances of the applicant. These considerations are cumulatively looked at, but I am satisfied that the balance must tilt heavily in favour of there being prospects of success in the appeal itself.  See State v Williams 1980 ZLR 466.

On 9 June 2009, the applicant filed an application for bail pending appeal.

Submissions were made on 24 June 2009. The matter was postponed to 25 June for my ruling. The applicants counsel did not appear in court on that date and the matter was struck off the roll.

The application was reset for 24 July, whereupon I dismissed the application. I gave ex tempore reasons for the refusal of bail pending appeal.

The facts giving rise to the conviction are that the complainant and her young brother resided in Chitungwiza with the applicant's sister, one Drapper. When the schools closed in December 2005, the complainant and her brother went to stay with their father in Epworth. It is during this holiday that the applicant was found to have raped the complainant. The complainant returned to her aunt when schools opened.

The applicant appealed against both conviction and sentence.

The appeal against conviction is based on the ground that there was no evidence to support the State's case. The State had, therefore, failed to prove its case beyond a reasonable doubt.

It is trite that in every case where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail.

In determining an application for bail pending appeal, the court is required to consider the following factors –

(i) Likelihood of abscondment;

(ii) Prospects of success on appeal;

(iii) Right of the applicant to liberty; and

The finding of the court that Drapper did not influence the complainant to implicate the appellant cannot be faulted.

I therefore find that the applicant has no reasonable prospect of success on appeal.

In this case, the applicant was convicted of a serious offence and sentenced to a long term of imprisonment. In view of my finding on prospects of success, the temptation on his part to abscond is likely to be very high indeed.

This is an application for bail pending appeal.

The applicant lodged this application on the 4^th day of September 2008. The application was consented to by the Attorney General's office...,.

On a cursory perusal of the documents before me, my suspicion was aroused by the fact that the applicant's co-accused had heavily implicated him in this offence but the respondent seemed to have either overlooked, or deliberately ignored, this crucial fact.

On the 26^th October 2008, I directed that the matter be argued by both counsel in Chambers.

The matter was indeed argued on the 19^th of November 2008.

Counsel for the respondent again confirmed his position that he was of the view that the respondent did not have a strong case against the applicant, even if he is implicated by his co-accused. In view of his stance, which was suspicious to me, I ordered that he files warned and cautioned statements of the applicant and his co-accused, Victor Teera.

This he did, and on perusal I discovered that Victor Teera gave a detailed statement outlining the applicant's involvement in the murder.

This to me is one of the strong factors to be considered in determining bail for the applicant.

While our law, indeed, operates on the time-honoured principle of the presumption of innocence until proven guilty, there are certain factors which, when taken into account, should deprive a suspect of his freedom if such freedom will result in him failing to attend trial. The enquiry should always be whether or not the applicant's release will result in him absconding or standing trial.  

In the present matter, the fact that his co-accused implicates him will, in my view, result in him absconding in order to avoid his co-accused's testimony against him.

After his conviction and sentence, he filed an application for review, and this application for bail pending review.

The State counsel filed a notice conceding to the granting of bail. However, because I was not satisfied that the concession was proper, I invited both the State and defence counsel to appear before me to persuade me to view the matter in the same light as they did.

When asked what irregularity the trial court has committed during the trial of the matter, both counsel conceded that there was none. They conceded that the manner in which the trial court handled the matter was unassailable.

Indeed, the trial court cannot be faulted in the manner it dealt with the trial...,. The following is what took place in court -

“Charge put to accused

Plea - G

“A” Facts put to accused

Q – Do you agree with them.

A – Yes.

Q – Anything to add/subtract.

A- No.

Essential Elements

Q – Correct on 2/4/08 you took complainant's two heifers.

A- Yes.

Q – You took them without complainant's consent.

A – Yes.

Q – Your intention was to deprive the owner permanently of the heifers.

A – Yes.

Q – Any right.

A - No

Q – Any defence.

A – No.

Q – Have you understood my explanation.

A – Yes.

Q – Any special circumstances.

A – It happened because I was suffering from hunger. I was forced to commit the offence. I wanted to go to South Africa to look for a job but I did not have the transport fare. I thought I would raise some money for transport as well as giving my family some whilst I go to South Africa...,.

Q – Why did you commit the offence.

A – It just happened because I wanted to go to South Africa and we wanted to pay for transport to go there.”

This is an application for bail pending appeal, which was not opposed….,.

The applicant's application for bail is on the basis that the sentence imposed is too harsh because he is a first offender and he pleaded guilty which shows contrition. He also submitted that he did not gain from the commission of the offence as he was caught red-handed. It is also his further submission that the offence is a fiscal one. For that reason it should have attracted a non-custodial sentence, namely, community service. 

The respondent fully supports this stance.

The factors that a court has to take into account in determining an application for bail pending appeal have been well-debated in this jurisdiction.

In such applications, I have invariably sought for and found comfortable guidance in the remarks of BARON JA in The State v Tengende and Others 1981 ZLR 445. I am aware that there have been other more recent judgments from the Supreme Court pronouncing on the same subject, but, in my view, the clarity of the position at law as put in that judgment is quite appealing. In that judgment, the learned judge clearly brought out the distinction between considerations that should weigh with the court in an application for bail pending appeal and an application for bail pending trial. This is what he had to say -

“The submission loses sight of the essential difference between bail pending trial and bail pending appeal. In either case, bail is a matter for the discretion of the court, but bail pending trial will not normally be refused on charges of this nature unless there are positive reasons for refusal, such as the danger of the accused absconding or of interference with witnesses. But bail pending appeal involves a new and important factor; the applicant has been found guilty and sentenced to imprisonment.

Bail is not a right. An applicant for bail asks the court to exercise its discretion in his favour, and it is for him to satisfy the court that there are grounds for doing so. In the case of bail pending appeal, the position is not, even as a matter of practice, that bail will be granted in the absence of positive grounds for refusal; the proper approach is that in the absence of positive grounds for granting bail it will be refused. This is not to say that an applicant for bail pending appeal has any heavy onus to discharge; as HENOCHSBERG J said in R v Mthembu 1961 (3) SA 468 (D & CLD) at 471 'if justice is not endangered, the court favours liberty, more particularly where there is a reasonable prospect of success.'   

But, it is, nevertheless, important not to lose sight of the fact that the exercise of the court's discretion involves balancing the considerations of the liberty of the individual and the proper administration of justice, and that, where the applicant has been tried and sentenced, it is for him to tip the balance in his favour.”

In conclusion, the learned judge took the approach that it is not the consideration of any particular factor that should weigh with the court in considering such an application. Rather, the question to be answered at the end of the inquiry is whether the applicants have shown that the court's discretion should be exercised in their favour, taking all the factors into account.

In casu, I have been urged to exercise my discretion in favour of the applicants. In doing so, it was pressed upon me by counsel for the applicants that the trial magistrate misdirected herself in accepting the State evidence at the expense of the evidence adduced by the applicants. In particular, counsel for the applicants argued that there was insufficient evidence on record upon which a guilty verdict could be returned.

I am afraid I do not agree with him in this regard. My reading of the record is that the evidence before the trial court was cogent, and any other verdict would have been a miscarriage of justice.

Counsel for the respondent did not oppose the application.

In his written response, he had some misgivings on the evidence led by the State in the matter, and was of the view that upon revisiting by a superior court the findings by the trial court, that an offence had been proved before her, could be interfered with.

Counsel for the applicant made the valid point that where the Attorney-General has made a concession, his opinion in the matter should command respect.

Indeed, the opinion of the Attorney General commands the respect of this court as it is invariably well-put and founded. It is invariably based on established legal principles that underpin the criminal law of this country, and is based on detailed research that the court does not have time to carry out on its own. It is invariably balanced, and, where necessary, draws the attention of the court to authorities that may be adverse to the final position adopted by the respondent. It is invariably reliable as a statement of the position at law of the issue in dispute.

In casu, I find the opinion of the Attorney-General lacking in one or more of the above respects. It is not of the standard that is usually extended to this court.

I am of the view that the concession made in this matter was not properly made.

In the result, I make the following order –

Both counsel submitted that the trial court did not properly exercise its discretion in assessing sentence in this matter, and that the noting of an appeal against sentence should weigh with me in considering this application.

I agree that the noting of an appeal against sentence is a factor that should weigh with me, as, generally speaking, the noting of an appeal against sentence offers wide scope for a different opinion. (See S v Dzawo 1998 (1) ZLR 536 (S)).

I do not find any instance in which the trial court improperly or unreasonably exercised its discretion in assessing the sentence.

It is common cause that the applicant irregularly facilitated the clearance of the stolen beasts, at a time he was no longer attached to the Anti-Stock Theft Unit, and, therefore, had no business clearing the beasts at all. Thereafter, he irregularly facilitated the acquisition of the Animal Movement Permits when it was not his function to do so.

His conduct in this regard provides a strong nexus between him and the commission of the offence such that his prospects of success on appeal are pretty dim indeed.

It is therefore in his interest and that of the due administration of justice that he should continue to serve his prison term while prosecuting his appeal.

As in all applications of this nature the court has the discretion to grant or decline the relief sought.  In exercising that discretion, in a case where the application relates to bail pending appeal, the court will be guided by the following principles -

(i) The prospects of success of the appeal;

(ii) The likelihood of the accused absconding in light of the gravity of the offence and the sentence imposed;

(iii) The likely delay before the appeal can be heard; and

(iv) The right of the individual to liberty.

These principles have been enunciated in a number of cases, such as State vs Dzawo 1998 (I) ZLR 356 and State vs Bennett 1985 (2) 205.

Of the above principles, the most cardinal in an application of this nature is whether the appeal has prospects of success. In this regard the applicant need not show that the appeal will certainly succeed.  Rather, all he needs to show is that the appeal is reasonably arguable and that it is not manifestly doomed to fail. See State vs Kilpin 1978 RLR 282.

This appeal is arguable in the following respects -

The complainant alleges that he was sodomised by the applicant, a friend of his brother, whilst sharing the same bed but in different blankets in a bedroom at the house he and his elder brother shared. He had, on several occasions within a period of less than an hour after they retired to bed, been disturbed by the applicant's groping hand. He did not feel the applicant penetrating his anus. He was awakened only after the applicant had already penetrated and discharged semen. His reaction was to get up and report to his brother who was in another room. Thereafter, they both left for the police station to make a report.  Neither the complainant at the time of the commission of the offence, nor his brother thereafter, confronted the applicant accusing him of this act.

Is this the normal reaction of persons confronted with this sort of occurrence?

The complainant says he was putting on a boxer short and inside it an underwear. Firstly, how did the applicant open up the complainant's separate blankets, work around the boxer short and then the underwear without disturbing the complainant's sleep? The complainant says the boxer short was soiled with semen. What about his underwear? He says he showed the soiled boxer short to his brother and the police, both of whom confirm seeing the semen on it. This boxer short was not produced in court. Instead, the complainant subsequently washed it, thereby depriving the State of an important exhibit.

The complainant was medically examined four days (or is it two days?) after the event. The medical examination did not reveal any signs of forced entry such as bruises and larcerations.

Finally, the applicant hinted that the complainant and his brother might have had political motives to falsely implicate him. The trial magistrate did very little to explore this line of defence. He should have in view of the fact that he was dealing with an unrepresented accused person.

Clearly, from the above cursory observations, it cannot be said that the appeal is not reasonably arguable or that it is manifestly doomed to fail.

This is an application for bail pending appeal against both conviction and sentence.

The applicant was charged with fraud as defined in section 136(a) of the Criminal Law Codification Reform) Act [Chapter 9:23]. The background of this case is that the applicant defrauded Dorris Dewa of an amount of R40,000= while operating a company called Defiant Properties.

The applicant carefully crafted a plan wherein one Mpilo Nyathi masqueraded as one Magadelene Sibanda, the owner/seller of a house. It is through that scheme that Dorris Dewa was duped into parting with the said amount on the belief that she was buying a house from the owner, yet, infact and in truth, the person who was dealing with her was Mpilo Nyathi who is not the owner of the said house.

Mpilo Nyathi appeared in court, pleaded guilty to the charge, and was convicted. The appellant pleaded not guilty but was convicted and was referred to this court for sentence.

We convicted the applicants for murder with constructive intent on 12 June 2009 and sentenced them each to sixteen (16) years imprisonment. They applied for leave to appeal and they were granted leave to appeal against conviction. They have since filed their appeal against conviction only under SC18/10. 

They now seek admission to bail pending their appeal. 

The main factors that are taken into account in such applications for bail pending appeal are -

(a) The prospects of success on appeal, and

(b) The interests of justice i.e. will the admission of applicants to bail not jeopardize the interests of justice through abscondment.

S v Hudson 1999 (2) SACR 431; S v Williams 1980 ZLR 466 (AD); S v Kilpin 1978 RLR 282 (A) and S v Manyange 2003 (1) ZLR 21 (H).

In the S v Kilpin 1978 RLR 282 (A) case, the court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. On the one hand, where the person has not yet been convicted he is still presumed innocent and the courts will lean in favour of granting him/her liberty before he/she is tried. On the other hand, where he/she has already been convicted the presumption of innocence falls away.

In casu, the applicants were convicted of murder with constructive intent and therefore the presumption of innocence no longer operates in their favour. In the S v Williams 1980 ZLR 466 (AD) case, it was held that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal should be balanced against the interests of the administration of justice. The less the chance of success on appeal, the greater the chance there is of the convicted person absconding. Even if the court finds that indeed there are prospects of success on appeal against conviction, still that finding does not necessarily entitle the applicants to bail. It was pointed out in the S v Williams 1980 ZLR 466 (AD) case -

“But it was putting it too highly to say that bail should only be granted where there was a reasonable prospect of the appeal succeeding. On the other hand, in serious cases even where there was a reasonable prospect of success on appeal bail should sometimes be refused, notwithstanding that there is little danger of the convicted person absconding.” ….,.

The applicants stand convicted of a very serious offence. Admittedly, the applicants were granted leave to appeal, but this does not, per se, entitle them to be admitted to bail. The onus of establishing that justice will not be endangered and that there is a reasonable prospect of success is upon the applicants. It is improper to allow people convicted of serious offences to walk in the streets instead of serving their sentence when the prospects of success are non-existent. Society would lose faith in the system of justice. With a serious offence there will be a pronounced risk that the convicted person will flee from justice if released, especially if he has no reasonable prospects of success on appeal – S v Labuschagne 2003 (1) ZLR 644 (SC). This is the case in casu, there were no reasonable prospects of success and the applicants have been convicted of a very serious offence. They are not suitable candidates for bail.

An application for bail pending appeal is different from a bail application pending trial by reason that in the later situation the presumption of innocence favours the applicant. In the former situation the applicant for bail, having been convicted of the crime, no longer enjoys the benefit of the presumption of innocence S v Kilpin 1978 RLR 282 (A).

Counsel for the applicants submitted that the State failed to adduce evidence to prove guilt beyond a reasonable doubt especially as the identification of the beasts was “dubious”. He took the view that in light of that the applicants had bright prospects of success on appeal.

I do not agree with counsel for the applicants because there was strong evidence against the applicants.

Numerous cases have examined the criteria to be followed in considering a bail application pending appeal. The main determining factors are the applicant's prospects of success on appeal and the interests of justice, that is to say, whether the release of the applicant on bail will not jeopardise the administration of justice. Experience teaches that the probability of abscondment is inversely proportional to diminished prospects of success on appeal. Equally so, in very serious cases, as this one, bail should not be lightly granted even where there are reasonable prospects. S v Benator 1985 (2) ZLR 205 (H). Thus, the courts have always taken into consideration the seriousness of the offence, the seriousness of the penalty imposed and the prospects of success in determining the possibility of prejudice to the administration of justice.

In this case, the applicants stand convicted of a serious crime of stock theft which carries a mandatory minimum sentence of nine (9) years. They were sentenced to an effective ten (10) years, and, as pointed out above, there is a very strong case against them. I am not persuaded that any of the applicants has prospects of success on appeal. If that is considered together with the lengthy term of incarceration which they are facing, it becomes clear that the motivation to abscond is very high.

It is also imperative to take judicial notice of the fact that the three applicants and two others were also convicted of a similar offence of stock theft on the 27th May 2009 by the Kwekwe Magistrates' Court and sentenced to the mandatory nine (9) years imprisonment after the court found no special circumstances.  That matter came before my brother Judge as a bail application under case no. HCB130/09. In addition to that, the third applicant, along with three others were convicted of stock theft by the Kwekwe Magistrates Court on 14th August 2009. For his efforts in that matter he was given an effective thirteen (13) years imprisonment. This proliferation of convictions for stock theft and the lengthy terms of imprisonment mean that the prospects of abscondment are very high. The applicants being a serious flight risk, the administration of justice will be jeopardized if they are admitted to bail.

In an application of this nature, the court must have regard, in the main, to the seriousness of the offence for which an applicant for bail stands convicted, the gravity of the penalty imposed and the prospects of success of the appeal in determining the possibility of prejudice to the administration of justice. Ultimately, the court will lean in favour of liberty where this will not endanger the interests of the administration of justice. S v Williams 1980 ZLR 466 (A).

In the case before me, the applicants have been convicted of a serious offence which carries a minimum mandatory sentence of nine (9) years. No special circumstances were found as would point to a lighter sentence. They have been sentenced to a lengthy term of incarceration and they have extremely dim prospects of success on the merits of the appeal. For these reasons, the motivation for abscondment in order to evade justice is very high. This is especially so when all this is considered against the backdrop of the other convictions and sentences meted against the second, third and fourth applicants.

I am not satisfied that the administration of justice will not be prejudiced by the admission of the applicants to bail pending appeal. In the result, it is ordered that-

This is an application for bail pending appeal.

The facts of the matter, as presented by the respondent, are that the applicant and his co-accused, one Israel Chihota, reside at Mutandiro and Nharira villages respectively, Chivhu and they are not employed.  On the 5th November 2009 the Bulawayo City Council rangers were carrying out patrols along Umzingwane River when they observed the two accused at a gold ore sieving table with the applicant pouring water on the sieving table while his co-accused was sieving the gold ore. They were spotted by the rangers from a distance of about fifteen (15) metres and they ran away. However, the rangers gave chase and caught up with them resulting in their arrest….,.

The applicant has appealed both the conviction and sentence. He now applies for bail pending appeal.  His argument, through his legal practitioners, is that:

(1) The court a quo erred by passing a sentence of 24 months imprisonment and referred me to the case of S v Majaya HB15-03.

(2) It erred by imposing a prison term when the appellant is a first offender. S v Zavanyika see HH41-95 and S v Shariwa HB37-03.

(3) That the appellant has an arguable case as was held at S v Sibusisiwe Ndlovu HB155-07 as per NDOU J.

It is trite now that where an accused has been convicted the approach to bail is different as the question of the presumption of innocence would have been eliminated.

The question before me is whether the appellant's chances of success on appeal are bright or not.

To determine this question, it is imperative that one should understand the circumstances surrounding the commission of the offence. The appellant was in the company of his co-accused when they were seen going through the motions of gold panning and they had all the necessary equipment or tools of the said trade. They ran away and were apprehended by the rangers. This was the evidence submitted by Tymon Ncube. It was his further evidence that there was no fishing facility where he found them. For that reason it is clear that they were indeed illegally panning gold.

In my view, the trial court accepted the respondent's case and properly convicted them.

The court enquired into the existence or otherwise of special circumstances and found none. In the absence of the said circumstances he had no alternative but to impose a mandatory sentence in terms of the law….,.

In view of the crystal clear evidence which was led and accepted by the court, I am of the view that the appellant's chances of success on appeal are bleak.

An application for bail pending appeal is different from one made pending trial in that while in the latter situation the presumption of innocence favours the applicants, in the former, the applicant, having been convicted of the crime, he/she no longer enjoys the benefit of the presumption of innocence.  See S v Kilpin 1978 RLR 282(A) 285 H and 286 A where MACDONALD CJ said -

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked when the guilt of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly be in gaol should be at large and nothing is more likely to encourage frivolous and vexatious appeals than the attitude adopted by the Magistrate in the present case.”

The applicant now applies for bail pending appeal arguing that his appeal has prospects of success given that the evidence led against him by the State was unreliable. Given that the hearing of the appeal will take a long time he is likely to serve a lengthy period before the appeal is disposed of and for that reason he ought to be released on bail pending appeal.

The State did not oppose the application and in his very brief response, counsel for the State stated as follows -

“BE PLEASED TO TAKE NOTICE that the Respondent is not opposed to the Applicant being granted bail pending appeal for the following reasons:-

The victim indicated that one NHLANHLA was cutting her with a knife. No further probing was done on what that entailed in. The identity of this Nhlanhla was not yet again verified. Conditions 1 -3 of the order filed of record are not opposed but the day of reporting in paragraph 4 must be changed to Friday.”

I was not sure that this concession had been properly made as a result of which I requested the record of proceedings to be made available to me - which was done. Having gone through the record I felt that there was a need for the matter to be set down for hearing for purposes of exhausting the issues arising from the application.

An application for bail pending appeal is different from one made pending trial in that while in the latter situation the presumption of innocence favours the applicant, in the former, the applicant, having been convicted of the crime, he/she no longer enjoys that benefit. Kanyoka and Others v S HB102-10….,.

As stated in S v Kilpin 1978 RLR 282 (A)…., -

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked when the guilt of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly be in gaol should be at large and nothing is more likely to encourage frivolous and vexatious appeals than the attitude adopted by the magistrate in the present case.”….,.

I must hasten to point out at this stage that the two applicants initially made an application for bail pending appeal before the trial magistrate. 

This application was mounted prior to filing of notice of appeal and the trial magistrate correctly threw out the application for it would have amounted to bail pending nothing which would be improper. It is common knowledge that for one to make an application for bail pending appeal there should be a notice of appeal and grounds of appeal filed. The applicant's counsel launched an unwarranted attack on the trial court for not entertaining such an unprocedural application.

I will now turn to the merits of the application for bail pending appeal argued before this court. 

After hearing arguments for and against the granting of bail I dismissed the application for bail. In coming up with that decision the court gave due regard to the settled principals governing bail pending appeal and the circumstances of the applicants and also the proceedings and findings in the trial court. In applications of this nature the court has to consider the following factors;

1. Whether or not there are prospects of success on appeal.

2. The likelihood or otherwise of abscondment.

3. The likely length of delay before the appeal is heard.

4. Any other factors which the court deems necessary in assessing the suitability of the applicant for bail pending appeal…..,.

From the record of proceeding of the trial court it is apparent that the applicants and the complainant transacted and that the outstanding amount which forms the subject of the offence was not remitted to the complainant. The trial court, in its judgment, properly and carefully assessed the evidence adduced before it and came up with a conviction well-grounded on the evidence. Most aspects of the case where common knowledge and not disputed. The applicants did not dispute being given the money by the complainant. The only issue the court had to decide on is whether the applicants unlawfully abused the trust bestowed on them and stole the complainant's money. It is apparent from the record of proceedings that the complainant did not raise any cry or alarm on the amount the she authorized the applicants to use but the issue she complained of pertained to the money the applicants used without any authorization. It was clear in the uncontroverted evidence on record that she did not give a blanket authorization for use of all the money but the complainant wrote correspondence where she authorized and sanctioned the use of the money. There is nothing which was before the trial court showing she had authorized first applicant and the second applicant to use the $126,463=17.

The record of proceeding does not show that the applicants dispute unlawfully using the complainant's money for their own benefit. The essential elements of theft of trust funds were fulfilled by the evidence before the trial court and it was on that basis the trial court came up with a conviction well-founded on evidence placed before it.

In the wake of evidence showing that indeed the applicants were entrusted with money by the complainant and that without authorization they used part of that money then the conviction by the trial court is well-pinned on evidence adduced. The fact that the applicants and complainant are related and had earlier transacted and agreed on other sums of money does not give a blanket authorization for use of the money. Given the circumstances of the case before the trial court there is really no basis for another court interfering with the trial court's decision of conviction, put in other words there are no prospects of success on appeal against conviction in the face of the overwhelming and clear evidence of theft of money bestowed for keeping.

The sentence imposed of 7 years with 2 years suspended on conditions of good behaviour and 3 years on conditions of restitution for theft of trust property money to the tune of $126,463=73 cannot be said to be outrageous. If anything, the trial court properly exercised its sentencing discretion weighing and matching the offence, the offender, and societal interest.

There is no likelihood of interference with the sentence as such no prospects of success on appeal against sentence. Having said there are no prospects of success against both conviction and sentence the likelihood of the applicants not availing themselves for prosecution of the appeal are high. The conviction and sentence can induce them into absconding and that will then put the interest of justice into jeopardy, I am alive to the likely delay in prosecution of appeals but given that there are no prospects of success on appeal that factor of likely delay cannot stand alone. The applicants have been convicted and sentenced, and, as such, have to prove their entitlement to bail. In this case, the circumstances are such that the interest of justice and integrity of the system will be prejudiced by admission of the applicants to bail in the absence of any prospects of success on appeal against such conviction and sentence.

It is against this background that the applicants' application was dismissed.

On 1 February 2013, I dismissed the applicant's application for bail pending appeal.  I gave ex tempore reasons for my decision. The applicant requested the written reasons for my decision. The following are my reasons.

The applicant was convicted, on 14 May 2008, of murdering his wife. He was sentenced to 15 years imprisonment. The applicant filed an application for leave to appeal against both the conviction and the sentence. It appears that the application was made out of time and was dismissed on 29 March 2010. The applicant appealed, on 1 April 2010, against the dismissal of his application….,.

The application before the court, which has been doing the rounds, is premised on section 123 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 123(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] empowers the High Court power to admit a person to bail pending appeal or review. The applicant cannot therefore, on section 123 of the Criminal Procedure and Evidence Act [Chapter 9:07], as the alternative to changed circumstances as the court is already seized with an application in terms of the section.

The limitations of the applicant's bail application are that there is a pending appeal against the order of 29 March 2010 before the Supreme Court and that the applicant has not yet obtained a certificate to appeal in person before the Supreme Court. Section 44(2)(b) of the High Court Act [Chapter 7:06] permits a person convicted by the High Court to appeal which involves a question of fact alone, or a question of mixed law and fact, with the leave of a judge of the High Court. Where a judge of the High Court refuses to grant leave the convicted person may seek the leave of a judge of the Supreme Court. The applicant has since appealed against the dismissal of his application for leave to appeal. Until the leave is granted, he cannot be said to have an appeal before the Supreme Court. Correspondingly, there cannot therefore be an application for bail pending on a non-existent appeal. Further, one cannot be properly before the Supreme Court under the present circumstances until a certificate to prosecute an appeal in person has been granted by that court. Section 11 of the Supreme Court Act [Chapter 7:13] does not permit a person who has been denied leave to appeal to the Supreme Court to prosecute an appeal in person.

It appears to me from the papers filed of record by the applicant, and the oral submissions he has made, that he cannot be said to be illiterate and does not understand what has been explained to him by the court on the various occasions (on the limitations of his application). It is therefore clear that the applicant is abusing the court by continually setting down the bail application before his application for a certificate and his appeal against the order of 29 March 2010 in the Supreme Court have been determined. The court would be forgiven, under the circumstances, for assuming that the applicant is merely seeking an opportunity to catch a breath of fresh air from prison, more particularly given the number of times that he has had the application for bail set down and has appeared in court. The applicant cannot therefore be allowed to continue abusing the court.

This is an application for bail pending appeal following the applicant's conviction for attempted murder and unlawful possession of a firearm….,.

Both counsel for the applicant and counsel for the respondent expressed divergent views on whether there were prospects of success on appeal.

Counsel for the applicant was of the firm view that once the trial court expressed doubts on the credibility of the witnesses or sufficiency of the evidence, then it should have returned a verdict of not guilty. He highlighted the various contradictions and shortfalls in the testimony of the State witnesses, and, in particular, highlighted that it was not sufficient for the ballistics expert to simply state his conclusions without illustrating and producing the actual exhibits. Counsel for the applicant cited the cases of R v Sibanda 1963 (4) SA 182 and S v Nyamayaro 1967 RLR 228.

Whilst acknowledging these shortfalls, counsel for the respondent was adamant that the trial court was correct in convicting the applicant. He submitted that if the applicant was found in possession of a firearm within a short period of it having been used in the Christon Bank shooting, then the inference is that he is the one who was involved in the shooting. He also cited S v Williams 1981 (1) ZLR 1170 [ZAD] in his submission that even if there may be prospects of success on appeal in respect of the attempted murder charge, the court may still deny the applicant bail on account of the nature of the charges.

In stating the law on bail pending appeal, FIELDSEND CJ had this to say in S v Williams 1981 (1) ZLR 1170 [ZAD]…,:

As regards the conviction for unlawful possession of a firearm, this appears to be tainted with allegations of assault levelled against the arresting officers. There is also lack of clarity on the sequence of events taking into account the contradictions in the evidence of the police officers involved. I will also take into account the effective sentence the applicant is likely to serve on this charge after factoring in remission on good behaviour. I have also considered that although the first count is inherently serious there is nothing to show that the admission of the applicant on bail will jeopardise the interests of justice. This, particularly so, when there is no evidence that the applicant was difficult to arrest or that he attempted to undermine the course of justice.

This is an application for bail pending appeal. The brief facts are that the applicant was arraigned before the Magistrates Court on a charge of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act Chapter 9:23]….,.

The applicant noted an appeal against conviction and sentence. Pending the determination of the appeal, the applicant applied for bail on the following grounds;

(1) That the applicant will not abscond if admitted to bail;

(2) That the applicant has good prospects of success on appeal in that;

(a) The presiding magistrate erred in convicting the applicant on his own plea of guilt without explaining the essential elements of the offence for which the applicant was charged;

(b) The presiding magistrate erred in convicting and sentencing the applicant without proof of injuries sustained by the complainant;

(c) The presiding magistrate erred in failing to consider the applicant's personal circumstances which were highly mitigatory;

(d) The presiding magistrate erred in failing to grant the applicant the opportunity to address the court in mitigation prior to sentencing him; and

(e) The presiding magistrate erred in failing to take into account the fact that the complainant had withdrawn charges against the applicant.

In considering an application of this nature, the court, amongst other factors, considers the possibility of the applicant absconding if given bail and whether or not the applicant has good prospects of success on the main appeal. See State v Mutasa 1988 (2) ZLR 4 (S). The principles governing the granting of bail after conviction are somewhat different from those governing bail before conviction. Where a person has already been convicted obviously the presumption of innocence is no longer applicable. A person who has already been convicted and sentenced, and has tasted incarceration, is more likely to abscond if he has no prospects of success on appeal.

It is common cause that the applicant pleaded guilty to assault. The applicant admitted to stabbing the complainant twice on the neck with a screw driver. The applicant also admitted that he intended to injure the complainant and that he foresaw that the complainant could be seriously injured. From the evidence on the record the appeal court is not likely to interfere with the conviction. The applicant's prospects of success with regard to conviction are slim to non-existent.

As regards sentence, the applicant's counsel submitted that an appeal court is likely to interfere with the penalty imposed. He argued strongly that without a medical affidavit indicating the seriousness of the injuries sustained by the complainant there was no evidence that the complainant suffered permanent injuries. Whilst it is correct that the medical affidavit was never tendered to show the extent of injuries suffered by the complainant, it is not the sole determinant factor. A look at the weapon used, and the area the attack was directed at, would leave one with a view that the charge was understated. Taking all the factors into consideration, it would have been appropriate to charge the applicant with attempted murder. An appeal court is not likely to be persuaded with the mere fact that there was no medical report in order to reduce the sentence….,.

I am satisfied that the applicant has no prospects of success on appeal as the appeal court is not likely to interfere with the penalty granted.

This is an application for bail pending appeal by an accused person who was convicted for fraud as defined in section 136 of the Criminal law (Codification and Reform) Act [Chapter 9:23], and sentenced to 5 years imprisonment of which 3 years were suspended on condition he makes restitution to Mpilo Hospital in the sum of R200,000= through the Clerk of Court, Bulawayo.

The applicant has noted an appeal against both conviction and sentence. The applicant is employed by the Ministry of Health as a Chief Medical Equipment Technician at Mpilo Hospital. He is alleged to have inflated a quotation of R48,000= to read R248,000= prejudicing Mpilo Hospital in the sum of R200,000=. He was charged together with another person who was acquitted.

In his application for bail pending appeal he says he is suitable for bail as he is of fixed abode, is 45 years old and married and while he was on remand he observed each and every day of the remand date and reporting conditions. He has nothing that can induce him to abscond. The applicant says he has prospects of success in that central to the crime of fraud is the element of prejudice which was not proved in this case. He said everything that was done concerning the tender in question was captured by the Secretary of the Tender Committee in the form of hand written minutes. He said if the minutes were produced they would exonerate him and that the tender that was won was based on the lowest quotation based on the wrong specification of the equipment ordered. The correct equipment was subsequently quoted at R248,000=. He said the minutes would show that the hospital did not suffer any prejudice and that he did not make any misrepresentation.

However, the minutes concerned were not produced by the prosecution despite his raising of the issue.

Both witnesses, Regina Moyo and the auditor conceded that the minutes were crucial as the best evidence on the issue - but the minutes were not produced. The auditor was adamant that the minutes be made available to determine what happened - but they were not made available.

Another witness also confirmed that the equipment that was actually ordered and delivered was the larger one that costs R248,000= and not the smaller one which had been quotated at R48,000=.

Counsel for the respondent conceded that the minutes should have been made available.

The applicant submitted that on that ground he has good prospects of success on appeal. 

I agree.

The applicant was clearly deprived of the availability of evidence that could have possibly exonerated him.

The application for bail pending appeal succeeds.

1. The applicant is granted bail in the sum of $100= to be deposited with the Assistant Registrar of High Court, Bulawayo.

2. The applicant is ordered to continue to reside at Number 72313 Lobengula West, Bulawayo until the finalization of this matter.

This is a chamber application for leave to appeal.

The applicant appeared in the Magistrates' Court on 22 January 2013 facing a charge of contravening section 36(1)(c) as read with section 36(1)(j) of the Immigration Act [Chapter 4:02] (assisting border jumpers). He pleaded guilty and was found guilty as charged….,.

Aggrieved by the sentence imposed by the trial court, he filed an appeal against it. He then applied for bail pending the appeal he had noted. His application found favour with the State's representative who sought to persuade the court to grant it. However, the court held the view that the concession by the State counsel was misplaced and not properly made and dismissed the application.

The appellant is aggrieved by the decision of this court to refuse him bail pending appeal and seeks the leave of this court to prosecute an appeal against that refusal.

This is an application for bail pending appeal. The applicant was convicted of rape in contravention of Section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

The applicant avers that he has prospects of success on appeal in that:

1) The court a quo grossly misdirected itself in convicting the applicant without applying the law regarding the manner in which the report of rape was made. He avers that it was not made freely and voluntarily.

The application before the court is for bail pending appeal.

The applicant was convicted of contravening section 126(3) of Criminal Law (Codification and Reform) Act [Chapter 9:23] - Armed Robbery….,.

The State opposed the application….,.

The position in handling applications of this nature is fairly settled. The Court has to consider the following factors:-

1. The likelihood of abscondment.

2. The prospect of success on appeal.

3. The potential length of delay before the appeal is heard.

4. The right of an individual to liberty.

A perusal of the record of proceedings in the court a quo clearly shows that the State witnesses narrated a coherent story of how the four accused attacked them on 13 January 2010 around 7:30 pm. One was armed with an iron rod which he threw at Farisai Lilian Chivaura, the first witness, and injured her little finger. The two accused who got in first announced they were robbers from Harare and demanded 1½ kg of gold and money or they would kill everyone. There was only a candle lit as there was no electricity. Farisai Lilian never identified or recognised any of the four. Her husband got up and charged at them and was assaulted and was left for dead.

Another State witness, Godfrey, testified that after he had served the complainants with tea, dogs barked outside. Byson, a security guard, went out to investigate. In the kitchen, Godfrey met a man with a pistol and two others who were masked. He was taken back into the dining room followed by Byson Sande and all were ordered to lie down. Byson Sande was taken to the complainant's bedroom, Farisai Lilian Chivaura was taken there later, followed by Godfrey who was made to lie under a bed. He heard them calling out the names of robbers Tau and Shaddie during the robbery.

Byson Sande testified that when he arrived at Chivaura's place he asked for his gun to carry out his guarding duties. Mr Chivaura told him to wait and eat first. During this discourse dogs barked outside and he went to check what that could be. In the corridor he met a man who hit him and he fell. While on the ground he felt the barrel of a pistol on his cheeks. He was throttled and was told to be silent. The three men dragged him into the dining room where everyone else was lying on the ground. Mr Chivaura and himself were the only ones being assaulted. He was led into the bedroom of the complainant where at the door he was slammed against it and it opened. They searched the room and later they called the complainant whom they threatened to rape if they found no money. When they left they took two guns from the house, a long range riffle serial no.410G and a short range rifle serial number 26457A. He was called to CID Norton where he identified the long range rifle by its serial number 4107G and its lockable bullet chamber which if locked no bullets would be admitted therein. While at the crime scene, after looting guns, one of the robbers retorted that either Robbie or Shaddies should come and collect them.

The gun was produced in court as an exhibit; it had its serial number engraved on two areas. Two gun certificates were also produced.

The fourth witness, Nyabutho Mkandhla, was the Investigating Officer for another robbery which had been perpetrated at Sengu Shop in Norton. It was established, after the arrest of the applicant, that he had two guns at his home used in the Sengu robbery. This witness and his team took the applicant to his home and with his assistance he recovered a CZ pistol from the applicant under his bed in his bedroom. His wife witnessed that the applicant led them in the night to his field, where, with his assistance, they unearthed the riffle with serial 4107G which had been stolen at Chivaura Farm - the complainants in casu.

Accused Ttwo sought to exonerate the applicant saying it was his rifle and pistol. Nevertheless this was rebutted by the Investigation Officer who stated that they were led to the two guns by the applicant and not Accused Two. Further, groceries stolen from Sengu were found in possession of the applicant's wife by the police….,.

Further, the applicant's name was mentioned twice in the course of the robbery, that fact and the fact that he was found in possession of the firearms stolen and used during the robbery could not be attributed to coincidence….,.

The law which guided the court a quo in dealing with the application for bail pending appeal is settled as can be discerned from the plethora of authorities in our jurisdiction. In a nutshell, the court should consider the following factors:-

(i) Reasonable prospects of success on appeal.

(ii) The likelihood or otherwise of abscondment.

(iii) The balance between the right of individual to liberty and the proper administration of justice.

(iv) The potential length of delay before the appeal is heard.

(v) Any other factors which the court deems necessary in assessing the suitability of the application for bail pending appeal.

In respect of sentence, the appellant said the sentence induces a sense of shock in its severity when an option of a fine or non-custodial sentence could have been imposed as the appellant has now lost his job in a disgraceful manner, at the age of 53 years, after serving the force for over 30 years and is a veteran of the liberation war struggle….,.

The court a quo made no comment in respect of the appropriateness of the sentence….,.

While judicial officers are enjoined to give reasons for any decision made, see S v Gwisai and Ors HH177-12, I do not intend to be detained by counsel for the appellant's argument in that regard. The misdirection in this regard may not be of sufficient nature to viciate that decision made as the trial magistrate referred to reasons for judgment in respect of conviction.

This is an application for bail pending appeal against conviction and sentence.

The applicant was arraigned before the court sitting at Murewa for contravening section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] - stock theft. He is alleged to have stolen a stray beast.

The applicant was legally represented during the proceedings. He was sentenced to the minimum mandatory sentence of nine (9) years after the court a quo ruled that there were no special circumstances. He is now attacking the procedural aspect of the case, more particularly, he is now alleging that it was his defence counsel who tendered a plea of guilty on his behalf and that the court erred in ruling that there were no special circumstances.

I was referred to two important cases of S v Nyandoro 1987 (2) ZLR 66 SC…, and S v Machokoto 1996 (2) ZLR 190 (H).

The counsel for the respondent is not opposing the application.

However, having perused the record as well as the cited cases, I do not agree with the submissions by both counsels as far as the issue of conviction is concerned. There was no misdirection on the part of the court a quo and it is not true that it was the defence counsel who tendered a plea of guilty on behalf of the accused. It was the accused himself who tendered the plea of guilty and the defence counsel confirmed that the plea was in accordance with his instructions. The lawyer proceeded to tell the court that he had explained all the essential elements of the offence to the accused and asked the court to enter a verdict of guilty. There was therefore nothing untoward in that procedure. 

The main factors that are taken into account in such applications for bail pending appeal or refusal of bail pending appeal are:

(a) The prospects of success on appeal; and

(b) The interests of justice i.e. will the admission of applicants to bail not jeopardize the interests of justice through abscondment.

S v Hudson 1999 (2) SACR 431; S v Williams 1980 ZLR 466 (AD); S v Kilpin 1978 ZLR 282 (A) and S v Manyange 2003 (1) ZLR 21 (H).

In the S v Kilpin 1978 ZLR 282 (A) case…, the court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. On the one hand, where the person has not yet been convicted he is still presumed innocent and the courts will lean in favour of granting him/her liberty before he/she is tried. On the other hand, where he/she has already been convicted the presumption of innocence falls away.

In casu, the applicant was convicted of assault and therefore the presumption of innocence no longer operates in his favour.

In the S v Williams 1980 ZLR 466 (AD) case…, it was held that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal should be balanced against the interests of the administration of justice. The less the chance of success on appeal, the greater the chance there is of the convicted person absconding. Even if the court finds that indeed there are prospects of success on appeal against conviction, still that finding does not necessarily entitle the applicant to bail. It was pointed out in the S v Williams 1980 ZLR 466 (AD) case…,:

Pending the determination of the review, the applicant engaged a legal practitioner and has thus approached this court for bail in terms of section 123(1)(b)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The applicant has outlined a number of reasons as to why he believes that the judge will, on review, set aside the sentence imposed upon him by the court a quo. The applicant further cited a number of authorities which support his contention. He averred that it is highly likely that the sentence imposed upon the applicant will be interfered with.

The application is opposed by the State.

Counsel for the respondent submitted that there are deficiencies in the application, and, in his view, the application lacks merit and should therefore be dismissed. I will quote the submissions by the State which I found to be persuasive as follows:-

“…,. The reasons for bringing proceedings under review or appeal is usually the same, to have the judgment set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where the real grievance is against the method of the trial it is proper to bring the case on review. That distinction depends therefore on whether it is the result or the method of trial which is to be attacked. The method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The essential questions in review proceedings is not the correctness of the decision under review but its validity. In this regard, one has to see HERBSTEIN and VAN WINSEN, Civil Practice of the Supreme Court of South Africa 4^thed p932, Wahlhaus v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (A).

5. In the instant applicant has not shown to this Honourable Court any grounds of review he intends to rely on. Indeed, this Honourable Court has inherent power of review created under Part IV of the High Court of Zimbabwe Act, 1981 but that power is enumerated under section 27(1) of the Act which provides that subject to the provisions of that Act and any law, the grounds of review are absence of jurisdiction, bias and gross irregularity in the proceedings or decisions. 

It is submitted that there was no bias, lack of jurisdiction or gross irregularity. If ever there is anything to go by it has to be an appeal against the perceived excessiveness or harshness of the sentence. If the appellant is however going to take that route, he has to purge his late noting of appeal and then file his Notice of Appeal which apparently has not been filed.

6. It cannot be assumed that the Honourable Court, on review, is going to attend to issues raised in this application. Applicant has a duty to initiate and place before the court which grounds is his application for review based on. Paragraph 5 of the application talks of his legal practitioner going to write to the judge whom the proceedings have been brought for review. With all due respect, that is not the procedure. He has to write those reasons to the Honourable Court just before seeking admission of applicant to bail. There is no reference of the review number and neither is there a copy of the application to the Honourable Court.”

Indeed, the applicant erroneously stated in his application for bail pending review, in paragraph 5 of his application, that “the applicant's legal practitioners will proceed to make written submissions to the Honourable Judge to whom the matter has been allocated for review.”

The applicant's legal practitioner conceded that to date he has not done so.

It became apparent that Justice HUNGWE is the one dealing with the review when the applicant's legal practitioner produced a copy of a letter in his answering affidavit wherein he was asking the Judge if he wanted the lawyer to file written submissions. This letter, dated 3 April, has not been answered to date and no submissions have been filed before Justice HUNGWE. Counsel for the applicant argued, further, that he was not under any obligation to file any submissions. What this therefore means is that Justice HUNGWE is going to exercise his wide powers of review. But in doing so, he will not take into account the submissions and authorities cited in this bail application since the same have not been placed before him.

I therefore agree with the State counsel that there are deficiencies in this application. It has not been shown that the applicant has prospects of success on review and that his release on bail would not jeopardise the administration of justice, moreso when this application is brought after the proceedings have been terminated and the presumption of innocence is no longer applicable. I am therefore not persuaded by the applicant. The applicant must wait for the outcome of the automatic review while serving his sentence.

The crisp issue, notwithstanding the number of grounds of appeal, is whether the learned judge in the court a quo applied the correct legal principle applicable to applications for bail pending appeal.

When one has regard to the judgment of the learned magistrate, it is clear that the basis for convicting the appellant was circumstantial evidence.

The first ground of appeal to the High Court attacks the reasoning of the magistrate in arriving at his decision based on the circumstantial evidence. It also raises the possibility that the circumstantial evidence did not conclusively point to the guilt of the appellant but to different possibilities. The second ground of appeal, in raising as it does, the alleged error on the part of the magistrate in discounting real possibilities as being fanciful and far-fetched is clearly an amplification of the first ground. The third and fourth grounds are linked with the first and second grounds and relate to the nature of the evidence presented to the trial and the alleged failure, on the part of the magistrate, to analyse the evidence and his reliance on alleged wrong assumptions. The two grounds do not mention the specific evidence that the magistrate failed to analyse, but make reference, in general terms, to evidence and unsubstantiated assumptions; the latter of which is not specified. The sixth to eighth grounds, again, deal with issues relating to the circumstantial evidence and the acceptance of such evidence by the trial court and his dismissal of the appellant's evidence out of hand.

It seems to me that the learned judge erred in treating the fifth ground as an amplification of the first ground in that it raised a specific and clear ground of appeal. It seems, however, that despite its finding that there was only one ground, the learned judge did not strike out the other grounds but found, instead, that they were an amplification of the first ground. She said that the first ground could be substantiated.

The court then dealt with the application on the basis of the first ground of appeal. The court was alive to the fact that the trial court had convicted the appellant based on circumstantial evidence.

It is trite that where a judicial officer convicts an offender on the basis of circumstantial evidence there must be no other existing circumstances which would weaken or destroy the inference sought to be drawn. The inference drawn must be the only reasonable inference that can be drawn from the circumstances. This principle was enunciated in R v Bloom 1939 AD 188, by WATERMEYER JA, in the following terms…,:

“In reasoning by inferences there are two cardinal rules of logic which cannot be ignored:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

I must examine what the learned judge said in her judgment in order to determine whether she committed any irregularity or misdirection, or exercised her discretion in a manner vitiating her decision. In her judgment, the learned judge stated:

“The trial court had the benefit of seeing, hearing and assessing the witnesses credibility and made a finding that those State witnesses were worthy believing thus credible. A perusal of the record shows the analysis of evidence by the court and one cannot help but agree with the court's assertion. It is not an illegality to convict on circumstantial evidence. What is important is that from the given evidence the only reasonable inference to be drawn is that which the court a quo came up with. In the present case, the court a quo made a finding that the only reasonable inference was that it was the applicant who stole the motor vehicle in question. The inference drawn must or ought to be the only reasonable inference that can be drawn from the circumstances. The judgment by the court a quo spells out how the trial court, basing on credibility of witnesses, came up with the conclusion that given the evidence on hand the only reasonable inference to be drawn was that the applicant stole the motor vehicle in question.”

It is clear that the learned judge was alive to the principles applicable to a court which convicts an accused based on circumstantial evidence. Even though the fifth ground was held to be an amplification of the first ground, I find that in the application of the principles relating to circumstantial evidence, the learned judge would have had regard to all the evidence that was before the magistrate in her assessment as to the sufficiency of such evidence and the inferences to be drawn. There is no suggestion that the judge applied the principle incorrectly. There is also no suggestion that there was an irregularity or that the judge exercised her discretion in a manner that vitiated her decision.

It seems to me that the appellant has filed grounds of appeal before this Court that are more precise and clearer in format than those prepared against the conviction in the Magistrate's Court. I find no misdirection on the part of the learned judge who dismissed the application for bail pending appeal.

This is an application for bail pending appeal….,.

It is trite law that in an application of this nature, the appellants must show:-

(a) That he has prospects of success on appeal;

(b) That there is no risk or likelihood that he may abscond;

This is an application for bail pending appeal.

The appellant was charged and convicted of the offence of assault as defined in section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Dissatisfied with the conviction and the sentence, the applicant then noted an appeal with this court.

The appeal is pending. He now applies for bail pending appeal.

In such cases, the court has a discretion whether or not to grant the application for bail pending appeal. In the exercise of this discretion, the court is guided by the following principles:-

1) The prospects of success on appeal.

2) The likelihood of the accused absconding in view of the gravity of the offence and the sentence imposed.

3) The likely delay before the appeal can be heard.

Refer to S v Dzawo 1998 (1) ZLR 356.

Of paramount importance is the principle of prospects of success on appeal. 

In this case, the applicant alleges that he acted in self defence when he assaulted the complainant, the two had a dispute over a girlfriend. On the day in question, the complainant approached the accused saying he wanted to talk to him. The applicant walked away from the complainant and the complainant followed him. At some point, where there were stones, the applicant says he felt cornered by the complainant who had paced fast behind him, overtook him and blocked his way. This then prompted him to stab the complainant with a sharp stone three (3) times on the left side of the abdomen.

During the argument of this matter, the applicant's counsel conceded that the applicant exceeded the bounds of self-defence but submitted that, nonetheless, the trial court should have considered community service since the accused was a first offender. 

I fail to find any misdirection in this regard on the part of the trial magistrate as the magistrate in his reasoning explained why, in his view, a custodial sentence would be appropriate.

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending....,.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

The applicant was employed as a Public Prosecutor and based at Bulawayo Magistrates Court. On 11^th of March 2016, and after having been tried of two counts of abuse of public office as informed by section 174(i)(a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]….,.

Having been so convicted and sentenced, the applicant made an impromptu request for bail pending appeal which application was declined by the court a quo. The instant application seeks to have the applicant granted bail pending the prosecution of his appeal filed in this same court….,.

The broad considerations in an application for bail pending appeal are trite and the cardinal factors which must guide the court are basically the following ones:

(a) The likelihood of the applicant absconding in the event of him/her being granted bail; and

(b) The existence or otherwise of reasonable prospects of success in the lodged appeal.

See The State v Williams 1980 ZLR (1) 466; S v Benatar 1985 (2) ZLR 205; and S v Manyange 2003 (1) ZLR 21, amongst a plethora of other cases.

As noted by FIELDSEND CJ…, in The State v Williams 1980 ZLR (1) 466;

“In my view, to apply this test properly it is necessary to put in the balance both in the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter-connected because the less likely are the prospects of success the more inducement there is on an applicant to abscond. In every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail.”…,.

In its opposition to the application for bail pending appeal, the State has harped on the absence of prospects of success as the likely inducement for the applicant to abscond and I feel inclined to focus on this issue in this case.

The appellant was sentenced to 4 years imprisonment of which 1 year was suspended on condition of future good behavior. A further 1 and half years imprisonment was suspended on condition he restitutes the complainant in the sum of $21,300=. This left the appellant with an effective sentence of 18 months imprisonment assuming he made restitution.

The appellant has appealed against sentence only on the grounds, inter alia, that the court a quo paid lip service to the strong mitigating factors in his favour; it erred in considering that he has a similar previous conviction when that conviction came in 2010; and that it erred in not considering non-custodial options like community service.

Having noted an appeal against sentence, the appellant then approached the trial court for bail pending appeal arguing that he has prospects of success on appeal, and, as such, should be admitted to bail. On 26 April 2016, that court dismissed the application. In dismissing the application the court reasoned that:

“It is noted that there will be a very great risk of flight if appellant is only appealing against sentence and the most he can hope for is that the prison sentence will be subject to some minor adjustment. Coming to the circumstances of this application or which are before me, the appellant is appealing against sentence only and the offence of fraud is regarded as serious; he has been sentenced to 48 months imprisonment which is quite a substantial period. Looking at the grounds that have been raised in his notice of appeal, the court doesn't see any prospects of success. Actually, the grounds that were given were considered in passing of sentence. It has been pointed out that a non-custodial sentence will trivialize this offence; there is no doubt this is a serious offence and the amount involved is substantial. In S v Benator 1985 (2) ZLR 205 (H) it was indicated that in serious cases, even where there was a reasonable prospect of success on appeal, bail should…, be refused notwithstanding that there is little danger of the convicted person absconding.

It is correct to say that there is no indication that the appellant has a propensity to abscond. However, having said the above, the court finds him being unsuitable to be admitted to bail, thus the application by the defence is hereby dismissed.”

The State proved at the trial that in March 2014 the appellant misrepresented to one Stella Ngwenya that he was selling Plot numbers 11, 13 and 15 Sebungwe Road, Richmond, Bulawayo well knowing that they did not belong to him. He was duly paid the sum of $21,300= as purchase price in the presence of his lawyer, one Mlamuli Ncube. Therefore, at the time of conviction, the appellant had had the benefit of the complainant's money for two years and had not refunded it.

It is generally accepted that in an application for bail pending appeal the appellant would have lost the benefit of the presumption of innocence having been convicted. This is particularly so where he is not contesting the conviction but only the sentence meaning that the conviction will forever stand and the applicant for bail therefore would be a convict - in this case a convicted fraudster who spirited away a substantial sum of $21,300= from a property seeker.

The point is made in S v Williams 1980 ZLR 466…, that:

“The proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice. In my view, to apply this test properly it is necessary to put in the balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter-connected because the less likely are the prospects of success, the more inducement there is on an applicant to abscond.”

See also S v Benator 1985 (2) ZLR 205.

The court a quo appeared to discount the possibility of abscondment. It, however, leaned in favour of the concept adopted in S v Kilpin 1978 RLR 282 (AD) 286 A that:

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked when the guilt of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly be in gaol should be at large and nothing is more likely to encourage frivolous and vexatious appeals than the attitude adopted by the magistrate in the present case.”

Counsel for the appellant has complained, bitterly, that the court a quo had regard to the appellant's conviction on similar fraud charges in 2010. He is of the view that the conviction was irrelevant having occurred six years earlier, and, therefore, should have been disregarded by the court. In other words, that the appellant has previously defrauded someone by purporting to sell a house that he did not own should count for nothing in considering his suitability for bail pending appeal.

I do not agree, and, in doing so, I subscribe to the pronouncement of this court in AG v Phiri 1987 (2) ZLR 33 (H)…, although dealing with a slightly different set of facts, commends itself to me. The court said:

“The test, in my view, should be one of deciding whether or not there is a real danger, or a reasonable possibility, that the due administration of justice will be prejudiced if the accused is admitted to bail. If this real possibility exists, then the public is entitled to protection from the depredations of the accused and bail should be denied to him. In the absence of exceptional circumstances, I believe that it would be irresponsible for a judicial officer to allow bail to a person who has given every indication that he is an incorrigible and unrepentant criminal. (S v Maharaj 1976 (3) SA 205 (D) 209 H; S v Hlongwa 1979 (4) SA 112 (D) at 113 H).”

The appellant has been convicted of similar infractions before. He has now been convicted again; his hand having been found in the cookie jar again. He is therefore unrepentant and is likely to do it again.

The fact that the conviction was six years ago is only relevant in considering sentence and not bail. In fact, that he is a repeat offender also disqualifies him for community service, a factor which literally brings the appeal to its knees because the appellant was not a first offender. See S v Mutenha and Another HB35-16; S v Mabhena 1996 (1) ZLR (H)..,.

I tend to agree with counsel for the State that considering all the relevant factors, including the substantial amount involved, a term of imprisonment was unavoidable and the effective sentence imposed was “a mere slap on the wrist.”

In that regard, I am of the view that the appellant has dim prospects of success on appeal. This is a person who should, in the interest of justice, be in custody. I am unable to find any misdirection in the judgment of the court a quo. It would be an affront to all sense of justice to release him to allow him to go and look for money to make restitution as he suggests.

Considering his previous behavior, that is an exercise that may involve the commission of another offence.

In the result, the appeal is hereby dismissed.

What happened is that a police raid at House Number 48 Simon Mazorodze Road Athlone, Gweru by a squad of four police detectives from CID Kwekwe, on 8 January 2004, at about 1300hours, went horribly wrong. The police officers were looking for a dangerous armed robber who was known to be armed with three guns including a machine gun. When raiding the house, the officers had cocked their weapons in readiness.

During the course of the operation, the applicant was assigned to guard some of the occupants of the house gathered by the swimming pool, who included the 12 year old victim, as a search of the house was being conducted. He had his service pistol under his armpit when it accidentally discharged fatally wounding the 12 year old boy. He was charged with culpable homicide, convicted, and sentenced..,. It is that conviction and sentence which he is contesting in the Appeal Court.

The main State witness was Angela Ncube, the wife of the suspected armed robber who confirmed that her husband was on the run. Although emotionally charged, that witness confirmed the facts I have outlined above. In my view, even if the conviction is upheld, it would be extremely difficult to justify the sentence that was imposed for what was clearly an unfortunate shooting by a police officer in the bona fide execution of his duties. 

There is no doubt therefore that the appeal has bright prospects of success.

The courts would not want to appear to impede police officers in the execution of their duties by assessing their conduct with a magnifying glass of high power. The business of policing a society infested with dangerous criminals that Zimbabwe has become is already onerous as it is without the courts complicating it. Mistakes do happen all the time, and must be penalized as mistakes. At the same time, I am sure the courts would want to strike a balance that will ensure that police officers are able to discharge their duties without the shackles of armchair critics.

In terms of Rules 22(2) and (4) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979;

“2. The applicant shall, at the time of the noting of an appeal in terms of subrule (1) or within such period thereof, not exceeding five days, as the clerk of the court may allow, deposit with the clerk of the court the costs as estimated by the clerk of the court of one certified copy of the record in the case concerned;

Provided the clerk of the court may, in lieu of such deposit, accept a written undertaking by the appellant or his legal representative for the payment of such cost immediately after it has been determined.

3….,.

4. Any failure to comply with the provisions of subrule (2) or (3) or any undertaking made in terms of the proviso to subrule (2) shall invalidate the noting of an appeal.

Provided that a judge of the Supreme Court may give leave for a fresh appeal to be noted.”…,.

Section 123(1)(b)(iii) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:

“Subject to this section, a person may be admitted to bail or have his conditions of bail altered in the case of a person who has been convicted by a magistrates court and who applies for bail pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave; by a judge of the High Court or by any magistrate within whose jurisdiction he is in custody.”

Rule 22(4) reposes upon a judge the power to grant leave to file a fresh appeal in the case of an appeal that has been invalidated by failure to pay for the record of proceedings. It must follow, therefore, that such an application for leave or for reinstatement…, falls squarely within the ambit of section 123(1)(b)(iii) of the Criminal Procedure and Evidence Act [Chapter 9:07], as being one of the instances where bail can be granted.

The applicant was jointly charged with one Onismas Chitemere, a truck driver who was acquitted, on a charge of unlawful dealing in dangerous drugs as defined in section 156(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The applicant was convicted after a contested trial…,.

Dissatisfied with the conviction and sentence she noted an appeal to this court under case number HC656/14. Pending the determination of her appeal, she has approached this court for bail.

The application is opposed by the respondent.

The allegations were that the applicant unlawfully imported, delivered or transported 76.96 kilogrammes of dagga from Mozambique into Zimbabwe through Nyamapanda Boarder Post. The dagga was being ferried in a vehicle, a Load Master horse registration numbers BM08PLGP and a trailer bearing registration numbers BM03LSGP being driven by Onismas Chitemere.

The undisputed facts were that the applicant boarded the said vehicle in Malawi which was enroute to Durban in the Republic of South Africa. It is not in dispute that the vehicle was occupied by two people only, that is, the applicant and the driver. When the vehicle arrived at Nyamapanda Boarder Post the driver declared his consignment. The applicant did not declare anything. She proceeded to the Zimbabwean side of the boarder. The dagga was discovered by ZIMRA officials by use of sniffer dogs when they were searching the said vehicle.

Upon discovery of the dagga, the driver was very co-operative. He immediately told the ZIMRA officials that the dagga belonged to a passenger he had given a lift and had crossed the Zimbabwean Boarder Post. He further told the officials that the said passenger was waiting for him. He asked the officials to hide in the vehicle so that he could show them the owner of the dagga. This led to the arrest of the applicant.

The applicant's defence is simply that the dagga did not belong to her. She shifted the possession to the driver of the vehicle. She did not dispute the fact that she was a passenger in the said vehicle. Other than being a passenger she told the court that she was now in love with the said driver who had proposed love to her.

The principles governing applications of this nature were well settled in the cases of S v Dzawo (1) 1996 ZLR 536; S v Musasa SC45-02; and in S v Labuschagne 2003 (3) ZLR 644 (S). The following were held to be the primary considerations:

(i) The prospects of success on appeal;

(ii) Likelihood of abscondment;

(iii) The rights of an individual to liberty; and

(iv) The potential length of delay before the appeal is heard.

I carefully perused the record of proceedings attached to this application. There is nothing untoward on the manner the officials testified. They gave their evidence very well. They even corroborated the driver on the fact that the applicant admitted that the dagga was hers. She even asked to be pardoned. When she was arrested she even asked to collect her $100= which she had stashed in the dash board of the vehicle. When they arrested her she was the one who was calling the driver to find out where the driver was. This is contrary to her evidence that when she got at the border she left the driver so that she proceeded on her own to Harare. The driver was not initially arrested, but was actually a State witness. He was made an accused by the prosecutors after the accused was now denying possession of the dagga. The court, therefore, from the evidence on record did not misdirect itself when it acquitted the driver.

The court properly found the driver to be a credible witness though he was an accomplice.

While it is trite that the State must prove its case beyond a reasonable doubt, and that an accused has no onus to discharge, the findings of the court on p219 of the record is unassailable. The appellant contradicted herself in material respects leaving her defence unreasonable. The court said:-

“Upon arrest Accused (1) admitted to the offence. At one point she indicated that she admitted to the offence on the instruction of Accused (2) and because she deeply loved him. At another point she admitted fearing assaults which threats she indicated at some point came from Accused (2) and later stated that it was from the manner she was arrested. Surprisingly, according to her testimony at Zimra yard, she tried to dispute or deny the offence but she was threatened with assaults by an unspecified person…,. In the foregoing, I found inconsistencies in the evidence of Accused (1) which attacks credibility. This against the background of the two State witnesses which Accused (1) indicated had no reason whatsoever to lie against her and their evidence was corroborative…,. Circumstantially, the defence of Accused (1) is not only improper but cannot be accepted.”

Having gone through the record of proceedings I share the same views. There are, therefore, no prospects of success in this appeal.

Given the fact that the applicant was sentenced to an effective sentence of six years there is a likelihood that she would abscond once released on bail. Further, it must be noted that the applicant has a heavy onus to prove. She is no longer presumed innocent. Her presumption of innocence has fallen away. Hence her rights to liberty are weighed against that of the administration of justice. The amount of dagga she imported into the country is very substantial. A sentence in the region of 10 years imprisonment was called for. She was lucky to get away with an effective sentence of six years imprisonment. This, however, is appropriate given that she was a female offender. A different court would not impose anything less than six years imprisonment. The applicant, therefore, is not a good candidate for bail at this stage….,.

In the result, and for the foregoing, the application for bail pending appeal is dismissed.

After reading documents filed of record and hearing argument, I gave an ex-tempore judgment and dismissed the application for bail pending appeal. I have been asked for written reasons for that decision. The applicants intend to appeal against my decision. These are the reasons.

The applicants were convicted, after a fully contested trial, of robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

The facts were that on 24 August 2014, at about 2100hrs, the complainant, who was employed by the Ministry of Agriculture as a Goromonzi District Head of Department for Irrigation, was riding his motor cycle along Old Harare–Murewa road. He saw stones blocking the road. He stopped his motor cycle and started to remove the stones from the road. Whilst removing the stones, the two applicants emerged from the right side of the road. They grabbed the complainant by the neck and tripped him. They assaulted the complainant with open hands, fists and booted feet several times all over the body. The second applicant produced a knife from his pocket and threatened to stab the complainant. Acting in common purpose, they covered the complainant's face with a sack and dragged him into an abandoned house near the road where they further assaulted him and left him. Before leaving him they stripped the complainant naked and stole his two cell phones, a G-Tel A7041 and a ZTE Econet cell phone as well as cash amounting to $50=. Later, the applicants returned and threw back the G-Tel cell phone at the complainant. They went to the motor cycle where the complainant overheard them arguing whether to deflate the tyres or to take the motor cycle with them. Finally, they decided to leave it but returned to the complainant for unknown reason but failed to locate him since the complainant had crawled out of the house and hid at a nearby bush. They then went away.

The complainant sustained three fractured ribs, abdominal and spleen injuries and was treated in Harare. On 1 September 2014 the complainant managed to make a report at Juru Police Station leading to the arrest of the two applicants. Property valued at $65= was stolen and nothing was recovered.

In their Notice of Appeal, the applicants attacked the decision of the trial court on the basis that -

(1) The applicants were not positively identified;

(2) The report was made late after a week;

(3) The court relied on the evidence of a single witness;

(4) The court relied on the medical report which is not consistent with someone who was stabbed; and

(5) The sentence was too harsh so as to induce a sense of shock.

The application for bail was opposed by the respondent.

Both counsels were in agreement on the principles that govern applications of this nature. The principles were clearly outlined in the case of S v S Dzawo 1998 (1) ZLR 536 (SC) as follows -

(a) Whether there are prospects of success on appeal.

(b) Likelihood of abscondment.

(c) Rights of an individual to personal liberty.

(d) Likely delay before the appeal is heard.

I will deal with each of the principles.

The applicants contented that their conviction was unsafe and that they have bright prospects of success on appeal. The respondent, on the other hand, submitted that save for denying identity, the circumstances of the identification and the features of identification were not disputed by the applicants. Hence there are no prospects of success on appeal.

In casu, it is not in dispute that the applicants and the complainant knew each other prior to the commission of the offence. It is trite that a great degree of cautious approach is required where the evidence of identification is dependent upon the testimony of a single witness. This “precautious” approach is necessitated because the identification of an accused person is a matter notoriously fraught with error. It is an area wherein the potential for honest mistake looms large. This was observed by GUBBAY JA…, in S v Ndlovu & Ors 1985 (2) ZLR 261 (S)…,; S v Dhliwayo & Anor 1985 (2) ZLR 101 (S).

In the present case, as I stated above, it is not disputed that the applicants and the complainant knew each other before. Their defence is merely that they were not present at the scene of crime. Not only did the parties know each other before but they even talked to each other at close range. The area was well-lit by lights from the motor cycle. One of the applicants even remarked “aaah it's Gurumombe” to the complainant. When they were arguing between themselves the complainant was hearing their voices. This meant that the complainant saw and recognised the applicants and the applicants also equally saw and recognised the complainant. There was therefore no issue of mistaken identity.

As regards the issue of the court's reliance on the evidence of a single witness, I found no fault with that since it is competent for a court of law to convict on the evidence of a single credible witness in terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9.07].

On the issue of the report having been made a week later there is nothing untoward since the complainant had sustained serious injuries and had to be hospitalised in Harare. The injuries were confirmed by the medical report. The injuries were said to have been caused by a blunt object. The court was not at fault at all to rely on it….,.

In my view, there are no prospects of success on appeal.

The applicants were sentenced to an effective sentence of 10 years. The offence itself was a serious offence which involved pre-meditation and planning. By blocking the road, the applicants intended to rob whoever was to appear first at their trap. Now that they know their fate, which is a long term of imprisonment, this may induce them to abscond. There is therefore, a high risk of absconding if released on bail.

As to the right of an individual to liberty, the applicants have been convicted. The presumption of innocence has fallen away. Their guilt has been proved beyond a reasonable doubt. They are not entitled to be released on bail as of right.

Lastly, on the likely delay before the appeal is heard, this is no longer applicable since appeals are now being expeditiously processed.

They have to prosecute their appeal while serving. In the result, the application for bail pending appeal is dismissed.

The mere fact that the sentence may be reduced is not a basis for admitting the applicants to bail pending appeal. See S v Williams 1980 ZLR 466 (AD).

This is an application for bail pending appeal against both conviction and sentence….,.

The guiding principles in an application of this nature were clearly outlined in S v Dzawo 1998 (1) ZLR 536 as follows -

(a) Whether there are prospects of success on appeal.

(b) The risk of abscondment.

(c) The right of an individual to liberty taking into account the delay that may be encountered in finalizing appeals.

The applicant appeared before a Regional Magistrate sitting at Bulawayo facing a charge of rape. He pleaded not guilty but was nonetheless convicted and sentenced to 17 years imprisonment of which 3 years was suspended for five years on the usual conditions.

The applicant has noted an appeal against both conviction and sentence. He now seeks his release from custody on bail pending appeal.

The application is opposed....,.

In determining an application for bail pending appeal, the presumption of innocence no longer operates in favour of the appellant. It is trite that amongst the factors which the court has to take into account when considering whether to admit an applicant to bail pending appeal are the following:

(i) The prospects of success.

(ii) Whether there is likelihood that if admitted to bail the applicant will abscond thereby defeating the course of justice.

The court will always endeavour to balance the interests of the applicant and the interests of the due administration of justice. See the case of State v Benatar 1985 (2) ZLR 205….,.

The onus is on the applicant to show that should he be admitted to bail the interests of justice would not be compromised.

Factual Background

The complainant's mother had divorced the applicant at the time of the alleged offence. On a date unknown to the prosecutor but during the year 2014, at around 1400 hours, the complainant was asleep in her bedroom alone. Her mother was away in South Africa. The appellant is alleged to have entered the complainant's bedroom and found the complainant asleep. He closed the door and proceeded to have sexual intercourse with the complainant without her consent. After the offence, the appellant gave the complainant one dollar and told her not to reveal this incident to anyone else. The matter only came to light when the complainant and her mother had an argument over the complainant's poor results at school. During the heated argument with her mother the complainant had started crying and uttered the following words:

“You do not want to be mother to me, you never want to listen to what I say because of that I could not tell you that Manjoro raped me.”

From the evidence adduced before the court a quo, the complainant made these remarks because her mother had a tendency of not listening to her. It seems that the remarks were made to stress the point that the complainant's mother was not there for the complainant. The remark triggered a report into the rape allegations and the appellant was arrested. The court a quo was thorough in its analysis of the evidence presented before it. Its reasoning cannot be faulted. In rejecting the accused's defence, the trial court had this to say:

“The accused's defence was a bare denial. He had not committed the offence. The extension of that defence was that he could not possibly have been at home as he worked a 7am to 4:30pm shift per day. The State witnesses both said although his knock off time was 4:30pm there were days he arrived home as early as 1pm. This is not probable. Further, there are always days when employed persons are off duty or leave.”

I entertain no doubt that the appeal against conviction carries no prospects of success.

This was an application for bail pending appeal. It was opposed. I reserved judgment. This now is my judgment.

On 6 June 2017, the Regional Magistrate's Court at Masvingo convicted the applicant on two counts of rape. Initially they were three. He had pleaded not guilty to all. The court acquitted him on Count Two. It convicted him on One and Three. Both counts were taken as one for the purposes of sentence. The applicant was sentenced to fifteen years imprisonment. Of those, three were suspended for five years on the usual condition of good conduct. Thus, twelve years remained effective. The applicant appealed against both conviction and sentence. The appeal is pending. He has now applied to this court for bail pending the appeal.

The circumstances were these.

The applicant was fifty-four years old at the time of the trial. He is a businessman. He operates an electrical engineering shop in Masvingo. At the time of his arrest he was a student of Masters in Business Administration [MBA] with Great Zimbabwe University [GZU]. At the time of the trial the complainant was sixteen years old. The applicant and the complainant are related through marriage. The applicant, in a way, is an uncle or grandfather to the complainant. This is so in the sense that he is married to the complainant's grandmother's sister. The first two rapes were alleged to have occurred at the appellant's house in the low density suburb of Rhodene, Masvingo. The exact dates were, to the prosecutor, unknown, but, the first rape was alleged to have occurred sometime in August 2012. Then, the complainant was eleven years old [and the applicant fifty years old]. The second occasion was allegedly sometime in May 2014. Then, the complainant was thirteen years old [and the applicant fifty-two years old]. On those two counts, the State's case was that the complainant was still staying at the applicant's house. [At the time of the trial she was staying with her mother in Morningside, another suburb in Masvingo]. The complainant's father had died. Although her mother, sisters, grandmother and some other relatives were still alive, and were staying in Morningside, the applicant's family, comprising himself, his wife [of more than thirty-four years] and their three sons, had taken the complainant into their own home. This was out of compassion. The complainant's mother seemed to be struggling financially. Among other things, the applicant's family was sending the complainant to school. The applicant paid the fees. He bought her uniforms. From time to time he assisted the complainant and her family with groceries. At the applicant's home, the complainant slept in her own separate bedroom.

In the first rape, the applicant is alleged to have sneaked into the complainant's bedroom early around/ or between, 03:00 hours and 05:00 hours. He is alleged to have pulled off the blankets from the complainant, covered her mouth with one hand and pulled down her dress with the other. He allegedly removed the complainant's pant, got on top of her, and had sexual intercourse with her once without her consent. It was the State's case that on that first occasion the complainant reported the rape to a maid employed by the applicant's family at the time, one Dorothy. That was around 05:00 hours or 06:00 hours when Dorothy had come in for her daily household chores. She had found the complainant weeping.

On the second occasion, the applicant is alleged to have entered the complainant's bedroom and asked her for sex. She had refused. He had forcibly had sexual intercourse with her after he had overpowered and undressed her. It was also the State's case that the complainant had also reported this abuse to Dorothy.

It was common cause at the trial that the complainant did not report these two rapes to anyone else. The applicant not only denied them in toto, but he and his witnesses also denied that the complainant could have possibly reported to Dorothy. Dorothy was not called to give evidence. The State said she could not be located.

The third rape was alleged to have occurred on 3 September 2016, inside the applicant's Mercedes Benz motor vehicle, in some bush road off the Masvingo–Zvishavane–Bulawayo highway, some nine kilometres outside Masvingo. The State's case was that a day before, i.e. on 2 September 2016, the complainant had called the applicant on the cellphone asking for groceries and school uniforms. The applicant had agreed to meet her in Masvingo town the following day. When the complainant arrived, the applicant had asked her to get into his car. He had driven her to the place. On the way, she had enquired where he was taking her to. His response had been that she should wait and see. At the scene, the applicant allegedly came to the back seat where the complainant was. He forcibly had sexual intercourse with her once without her consent. Afterwards, he had driven her back into town. She had jumped out of the car at some traffic round-about when the applicant had slowed down to give way to traffic. The complainant said the whole experience traumatised her. She went downtown to some Great Zimbabwe University (GZU) complex and sat down. She sent a telephone text message to her mother, Sheena, that “Aubrey raped me.” But the message did not deliver. She had no money in her cellphone. She eventually walked home but did not enter the main house. She slept in an out-room till the next morning. When it was light, she bought air time. The text message then delivered eventually. At about the same time, Sheena was coming out of the house. She was going to the police to report that the complainant was missing. They met. Sheena told the complainant that she had just seen her message. She ordered the complainant into the car and drove straight to the police station. At the police station the complainant reported the rape [in Count Three] to the investigating officer. He, the complainant and Sheena drove to the scene. On their way back, the investigating officer assured the complainant that she should feel safe; that she was now in the hands of the law, and that she would be protected. He enquired whether apart from that one occasion [i.e. Count Three] the applicant had had sexual intercourse with her before. She said yes. She then revealed the other two rapes. Statements were recorded from the complainant and Sheena. The applicant was arrested on 3 September 2016 and charged with three counts of rape. A warned and cautioned statement was recorded from him in the presence of his legal practitioner. His response to all the three counts was a bare denial.

Sometime after 7 September 2016 the applicant was released on bail pending trial. The trial commenced on 6 March 2017. For the State, the complainant, her mother, Sheena, the investigating officer, and a State-registered nurse who had examined the complainant and compiled a medical report, gave evidence. For the defence, the applicant, his wife, son and a sister gave evidence. The court a quo held that there had been insufficient evidence on Count Two. Among other things, it was satisfied that at the time of the alleged rape, the complainant had now gone back to her mother and could not have been raped in the manner alleged. Furthermore, there had been inconsistencies in the State case whether the rape had occurred inside the complainant's bedroom or inside the bathroom. The court gave the applicant the benefit of the doubt and acquitted him on that count. But, it convicted him on counts One and Three.

The power of this court to admit a person to bail pending appeal is governed by section 123(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. This section invokes the same bail factors as listed in section 117 and 117A of the Criminal Procedure and Evidence Act [Chapter 9:07].

In this case, one of the factors argued was whether or not there is a real likelihood of the applicant absconding his appeal if released on bail. The State conceded that, looking at his personal circumstances only, the applicant was not a flight risk.

The concession seemed well made. At fifty-five years of age, the applicant is not young anymore. He is hardly likely to reinvent himself abroad if he were to skip bail. He has firm roots in this country. Among other things, he owns an immovable property jointly with his wife, albeit indirectly through a family company. He is established in business. He is the family's breadwinner. He has more to lose than gain if he runs away. The applicant did not run away when he was granted bail pending trial. He waited to see out his trial.

But, of course, the situation is now very different. He is now a convicted person. Among other things, the presumption of innocence has fallen away. Also gone with that is the constitutionally guaranteed right to liberty. He has now tested the discomfort of prison life, albeit for less than a month so far. That is not to say that this should automatically lead to an inference that he may abscond. But it is a very relevant factor.

There is also another very relevant factor. In assessing the risk of flight, the prospects of success of the appeal against conviction and/or sentence assume considerable importance. In this mater, it was just about the only relevant factor.

The assumption is that the greater the prospects of success of appeal, the lesser the inducement to abscond, and vice versa.

In this case, despite his firm roots in Zimbabwe, there is the prospect of the applicant spending twelve years in jail if the appeal does not succeed. The question therefore is, will the accused risk a lack of freedom for twelve years? Or will he take his chances and flee?

There is an additional factor.

Even if there is an assurance that despite the prospect of losing the appeal, and of spending twelve years in jail, the applicant will nevertheless wait to prosecute the appeal, the additional enquiry is; is it in the interests of the administration of justice that he be granted temporary liberty in the form of bail pending appeal? Or, is it not in the interests of justice that he starts serving his sentence, especially if the appeal against sentence is also unlikely to succeed?

In an application for bail pending appeal, the applicant needs not prove good prospects of success of the appeal beyond any reasonable doubt. All he needs do is to show that the appeal is free from predictable failure: see S v Hudson 1996 [1] SACR 431 [W] and Peter Chikumba v State HH724-15. If the applicant has a reasonably arguable case on appeal, what I referred to in Peter Chikumba v State HH724-15 as “some fighting chance”, then all else being equal, bail should be granted.

I now turn to consider the applicant's prospects of success on appeal.

The bulwark of the applicant's argument, on the appeal against conviction in Count One, was that the rape report was not made timeously; that when eventually it was made, a staggering five years later, it was as a result of persistent probing by the investigating officer; that the court a quo was wrong to accept that the rape had been reported to Dorothy, and that there had been such serious inconsistencies in the evidence of the Sate witnesses as to have made them unworthy of belief. It was also argued that the court a quo had misdirected itself in accepting the inference that the complainant had suddenly been returned to her mother because the rape allegations had surfaced, especially given that Dorothy had not been called to give evidence.

This argument stemmed from the fact that it was common cause that, at some point in time, the applicant's family had abruptly terminated the complainant's abode at their home and had returned her to her mother. Sheena said they had just “dumped” her home and left. Why and when that had happened was hotly contested. The defence said that the complainant had been returned after the death of one of the applicant's sons. It was said the applicant's wife had been so stressed out that she felt she could no longer cope with children in the house.

A further aspect of the applicant's defence to Count One was allegedly the implausibility that the complainant could have been raped in the manner alleged, in a home teeming with so many people at the time. It was said the risk of the applicant being caught in the act was high as any sounds emanating from the complainant's bedroom could easily be heard. At any rate, on instructions from the applicant's wife, the door to the complainant's bedroom was continuously locked. An additional aspect relevant to the defence in Count One was that there had been a bereavement in the family at the same time as the complainant had allegedly been raped. As Moslems, the family went into mourning for seven days. Every day they would drive to Mashava, some 40 kilometres west of Masvingo, where the funeral wake was being held. Both the applicant and the complainant would be part of the mourners. At no stage during that bereavement period had the applicant been left alone with the complainant. The applicant said the State's version should have been rejected because Dorothy was not called to give evidence. He said it must also be rejected because at trial there were three conflicting versions of Count One: one by the complainant herself; the other by Sheena, her mother, and the third by the investigating officer.

Counsel for the applicant pressed home the argument that it was in the car, back from inspecting the scene of Count Three, that the complainant had disclosed, for the first time, Counts One and Two. His point was, if the investigating officer and Sheena heard the same thing at the same time and place, and from the same person, why did they not, all the three of them, say the same thing during their testimonies in court?

The court disbelieved the applicant's versions. Among other things, it accepted that in Count One the rape had been reported to Dorothy and that this satisfied one of the requirements for a rape report, which is that it has to be made at the earliest possible opportunity. The court also accepted as plausible the argument by the State that the reason why the complainant had suddenly been returned to her mother was because the rape allegations had surfaced after the complainant had reported to Dorothy. If the State's version is discounted, that would mean that Count One remained unreported for a staggering five years. That would fall foul of one of the established requirements for a rape report. A rape report or complaint must be made without undue delay. It must be made at the earliest opportunity, which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to have made it: see S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H].

In casu, it was common cause that even though the complainant was staying under the applicant's roof when she said she was raped, from time to time she would go to her own mother. It was said she was in good books with her mother. Therefore, the applicant argued, there was no reason why, for five years, she kept silent. But, that Dorothy was not called to give evidence, by itself, can hardly be the reason for discounting the State version, or for saying the complainant did not report to her. Furthermore, that the complainant might have concealed the abuse from her mother and other people may also not be the reason for rejecting the State's version. A complaint in a rape case, or any other sexual offence, is admitted, not as proof of the rape or of the sexual offence. It is admitted, not to corroborate the complainant…,. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the sex act was consensual: see S v Nyirenda 2003 [2] ZLR 64 [H].

So, the difficulty that I have had with the applicant's approach on this particular aspect is that, whether Dorothy gave evidence or not, the court a quo chose to believe the complainant and chose to disbelieve the applicant.

Was that a misdirection?

If yes, was it so pertinent or so cogent and so outrageous in its defiance of logic as to warrant interference by the Appeal Court? I do not think so.

It is a cardinal rule that the trial court is better placed to assess a witness' credibility than the Appeal Court. Said GUBBAY CJ in S v Mlambo 1994 [2] ZLR 410 [S]...,.:

“The assessment of the credibility of a witness is the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.”

See also S v Soko SC118-92.

It is also trite that rape victims react differently. Every case depends on its own facts. There is no rule of thumb. The complainant remained steadfast in her response that she felt threatened. She felt uncomfortable. She said she was conscious she was not staying in her mother's house. She was very young - only eleven years old at the time of Count One. The court a quo believed her. That, in my view, will pause enormous problems for the applicant on appeal.

But, the applicant also said the State's version in Count One should have been rejected because the complainant's report to the police and her mother, five years later, was a result of persistent probing by the investigating officer.

It is another trite requirement that for a rape complaint or report to be admissible, it must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating character: see R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R] and S v Banana 2000 [1] ZLR 607 [S]. In a nutshell, the requirements for admissibility of a sexual complaint are:

[a] That it was made voluntarily and not as a result of questions of a leading and inducing or intimidating nature; and

[b] That it was made without undue delay but at the earliest opportunity, in all the circumstances, to the person to whom the complainant could reasonably be expected to make it: R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R]; S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H].

From the record of proceedings, especially the portions dealing with the evidence of the investigating officer, it is debatable whether his evidence can be impeached on the ground that there was an inducement or persistent probing by him leading to the complainant eventually disclosing Count One. But that is all the applicant needs. For as long as he has managed to show an arguable case, or a fighting chance, he should be entitled to relief. The enquiry on the prospects of success of the appeal does not go beyond this. Furthermore, the court a quo manifestly misdirected itself by accepting the prosecutor's argument that the reason why the applicant might have been returned to her mother in 2013 or back then, was because the rape allegations had surfaced. The complainant did not say that. Sheena did not say that either. It was mere speculation. The defence proffered a reason why the applicant was returned. It might have been implausible but there was no other version contesting it. So, the Appeal Court may well give him the benefit of the doubt on this point. Therefore, it cannot be said that the applicant's argument on Count One is doomed to fail.

But, regrettably for the applicant, there is still Count Three.

On Count Three, the mainstay of the applicant's defence was an alibi. He said on the day in question, he spent the whole day at home with his family. Evidence was produced that the applicant's wife and son had arrived from South Africa on that day. The applicant said he had picked them up from the pick-up point at around 05:00 hours and had driven them back home. They had brought numerous gifts. Much of the day had been spent opening and admiring the gifts. At no time had he ventured outside the gate. The applicant called his wife and son to support him on this. They did. However, the State argued that the defence of alibi was an afterthought. It had not been raised in the warned and cautioned statement. It had been raised for the first time at trial in the Defence Outline.

The applicant denied that the defence of alibi was made for the first time at trial. He said he had raised it, not only as early as September 2016 when he applied for bail pending trial, but also during interrogation at the police station on the day he had been arrested. Therefore, he argued, it had been incumbent upon the State to have investigated it. That not having been done, he should have been given the benefit of the doubt, the argument concluded.

The applicant also picked on some aspect of the State evidence to show some inconsistencies in Count Three. Part of the complainant's testimony was that during the tussle in the car, as the applicant forced himself on her, she had got bruised on the neck. However, the medical report had made no mention of it. The nurse said she would have entered the bruises on the medical report had they been shown to her.

All in all, the applicant argued that the rape reports were just an elaborate scheme by the complainant and/or her mother to extort money and property from him. This argument hinged on the fact that it was common cause that when the applicant had been arrested, both his nucleus and extended families had motivated several meetings with Sheena, her mother, and stepfather to arrange a settlement out of court. It seemed that the basic approach at those meetings had been that in return for payment of a sum of money and/or delivery of certain items of property to Sheena, the complainant would withdraw the rape charges. Several figures and items of property were mentioned. They included amounts of R100,000= and $30,000=; six live cows; a motor vehicle and a house.

Part of the defence evidence on the alleged extortion was a transcription of a telephone discussion between the applicant and the complainant's step-grandfather, one Peddy Young, sometime in November 2016. The applicant had secretly recorded it on the advice of his lawyers. The transcription seemed to confirm the narrative that there had been some arrangement for such a trade-off. The defence said nothing had come of it eventually because the applicant felt strongly that he or members of his family should not pay for something that he had not done. The court a quo dismissed the applicant's defence of alibi.

In my view, the Appeal Court is unlikely to find fault with that.

Despite the accused being represented by a legal practitioner when his warned and cautioned statement was recorded, his response, to all the three Counts, was a standard bare denial. The record of proceedings captures part of the applicant's warned and cautioned statement as follows:

Count 1: I deny the allegations.

Count 2: I deny the allegations.

Count 3: I deny the allegations.

A crucial aspect of the standard warning and cautioning administered by the police when someone has been arrested and is having their statement recorded is the warning, inter alia, that they are not obliged to say anything in answer to the allegations but that their failure, at that stage, to mention any facts relevant to their defence may result in the court drawing inferences against them.

It is absolutely stunning what strategic benefit, or advantage, the applicant and his counsel hoped to gain by concealing the circumstances of the alleged alibi. Counsel for the applicant conceded that the information should not have been concealed.

At trial, the applicant and his son claimed the alibi defence had been brought to the attention of the police during interrogation. The court disbelieved them.

Additionally, the son claimed that on the day that the applicant had been arrested, he [the son] had rushed to the complainant's mother's house to fetch them to the police station as he felt it had all been a mistake. He said on his way back to the car, one of the complainant's sisters had whispered to him that Sheena, i.e. the mother, was doing it all for the money. Apparently, the court a quo disbelieved him too.

I do not see the Appeal Court doing anything to upset the findings of the trial court on this. Prima facie, and with all due respect, such evidence seemed such an infantile assault on intelligence.

Counsel for the applicant maintained that the alibi defence was raised in the bail application and that therefore the State ought to have investigated it from then on. He specifically drew my attention to the bail statement in September 2016.

But, I perceive a number of problems.

Firstly, all that appears in that bail statement relevant to the point is this:

“16. In respect of the allegations of the 3^rd of September 2016, Applicant denies ever having seen the Complainant on the day in question. At the material time of the alleged rape, he was with his family wife and son who had just arrived from South Africa that morning.”

Secondly, other than interviewing the applicant's wife and son to check the purported alibi, who obviously would stand by the applicant, as they predictably did in court, it is difficult to understand what sort of investigations the police needed to have carried out. This alibi was not like the applicant was saying he had been out of the country or out of Masvingo town. He was around at the material time. All he was saying was that he had not gone nine kilometres out of town where the rape is alleged to have happened.

Thirdly, the complainant gave a graphic description of all the events before and after the rape. The applicant himself admitted that the complainant had indeed called him on the previous day for an appointment the following day. He admitted they had spoken together. He admitted she had made a request for uniforms. That had not been unusual. It was common cause that the complainant would do this from time to time and that the applicant would oblige. But, on this occasion the applicant was now saying he advised her to channel her request through his wife.

Why now? Obviously because of the rape allegations. The court a quo disbelieved him.

In substance, the alleged discrepancies or inconsistencies in the State case do not, in my view, go to the root of the matter. They are on the peripheries. In spite of them, the evidence led by the State had a consistent thread running through, namely, that the complainant was raped by the applicant. In my view, it is hardly likely the Appeal Court will interfere with the judgment of the lower court.

That the rape allegations by the complainant were one gigantic scheme by the complainant and her mother to fleece the applicant of money and assets seems difficult to sell. Neither the complainant nor Sheena called for those meetings where the trade-off between payment of money and delivery of assets against a withdrawal of the charges was mooted. It was the applicant, or members of his family who did. Neither did the complainant nor Sheena attend those meetings. It was the applicant and members of his family who did.

On sentence, the applicant's argument was that the sentence was shockingly excessive given the personal circumstances of the applicant. He was an elderly person. He was a first offender. No enquiry had been made whether or not he had been contrite.

There is no substance in the appeal against sentence. If the appeal against conviction does not succeed, as it is unlikely to, especially in respect of Count Three, the Appeal Court is unlikely to interfere with the sentence, even if Count Three will be the only one remaining. The sentence passed seems squarely within the general range of sentences for crimes of this nature. The Appeal Court is likely to consider that this was a rape within the family by someone who was a father figure to the complainant. The aggravating circumstances will militate against any reduction in the sentence.

Therefore, the application for bail pending appeal is hereby dismissed.

In an application for bail pending appeal, it is not the function of the judicial officer to satisfy himself beyond any measure of doubt whether or not the grounds of appeal are doomed to fail. If the applicant has some fighting chance on appeal, then, all the other relevant factors being neutral, the applicant must be entitled to relief.

In casu, counsel for both parties accept the test laid out in S v Hudson 1996 (1) SACR 431 (W). The question is not whether the appeal will succeed. The standard is much lower. It is whether the appeal is free from predictable failure. If that conclusion is reached, the applicant should be entitled to relief….,.

If he is not a flight risk, it is in the interests of justice that he be freed on bail pending appeal….,.

(f) Risk of absconding

In the previous application for bail pending appeal the applicant was adjudged to be a flight risk. But given that with the new ground of appeal, the conviction is likely to be set aside on appeal, I see no inducement for him to abscond. On the contrary, it seems reasonable to assume he will want to go through the appeal process and be vindicated. He is 60 years old. He is a man of substance. He is said to have, at one time or other, made international connections but he makes the point that he is now too old to run away and re-invent himself in another country. At any rate, the State conceded that the argument that he has international connections was mere conjecture. The record discloses no such fact. The allegation was based on the mere fact that he was once the Chief Executive Officer of an airline that flies to international destinations and that therefore he must be assumed to have made international connections!

With respect, we are courts of justice.

The applicant was said to be the head of a Christian ministry at the time of his incarceration. He owns real estate in this country. His roots are here. Taking all the factors into account, I see no grave risk of him skipping bail that may not be mitigated by stringent conditions.

In the circumstances, I find the applicant a suitable candidate for bail pending appeal.

DISPOSITION

It is hereby ordered as follows:

1. The applicant shall be admitted to bail pending appeal.

2. The following shall be the conditions attaching to the applicant's admission to bail:

2.1 The applicant shall deposit with the Clerk of Court at Harare Magistrate's Court bail in the sum of two thousand dollars (USD2,000=);

2.2 The applicant shall surrender the title deeds for the property known as Stand 17135 Harare Township of Salisbury Township situate in the District of Salisbury, otherwise known as No. 2 Zebra Close, Borrowdale West, Harare;

2.3 The applicant shall surrender all his travel documents to the Clerk of Court at Harare Magistrate's Court.

2.4 The applicant shall continue to reside at No.2 Zebra Close, Borrowdale West, Harare until his appeal is finalised.

2.5 The applicant shall report at Borrowdale Police Station every Friday of the week between the hours of 6:00 hours and 18:00 hours.